Separate and Unequal: Muslim Women and Un-Uniform Family Law in India

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Separate and UnequalSrimati Basu a

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Separate and Unequal

MUSLIM WOMEN AND UN-UNIFORM FAMILY LAW IN INDIA

SRIMATI BASUUniversity of Kentucky, USA

Abstract -------------------------------------------------------------------------------------------------------------------------------

Through an ethnographic examination of legal processes in Family Court, this article

maps some of the circumstances which Indian Muslim women confront in the area

of Family Law. It provides a portrait of the politically interested spaces which govern

their lives, indicating the osmosis between ‘religious,’ cultural and legal realms,

rather than essentialisms about the nature of Islam. It provides a reminder that we

can no more separate religious practices fundamentally from patriarchal logic than

we can separate jurisprudence and the workings of law, indeed the State, from its con-

stitution in multiple embedded sites of patriarchal logic and race and imperial regimes.

Optimal strategies for Indian Muslim women to be socioeconomically and legally

empowered are also interrogated in this context, as the paper explores the ways in

which gender equality and cultural difference and community support can, or not,

protect women. It emphasizes the importance of problematizing both notions of

‘community’ and ‘gender equity’ in any attempt to address women’s rights and needs.

------------------------------------------------------------------------------------------------------------------------------ KeywordsIslam, women’s rights, Muslim women, Islamic law and women, family law, Islamic

culture and community, India

INTRODUCTION

‘We’re all sitting here on the same bench,’ a plump young woman in a green-and-brown salwar kameez said to me during my fieldwork in the KolkataFamily Courts in 2001, ‘shouldn’t I be able to get the same things thatHindu women get in this court?’ She had been listening in as some of thecourt ‘counselors’ (helpers of the Family Court) discussed mutual consentprovisions, and chimed in wistfully, ‘who really agrees to give up on their

International Feminist Journal of Politics, 10:4 December 2008, 495–517

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household?’ As litigants often did while waiting around on court benches, sheshared her rendition of her marriage: her husband and his friend had chosenher for marriage, and while her mother-in-law seemed fine with the decisionat first, the mother-in-law’s four sisters began alleging that she didn’tbehave properly, couldn’t take care of her mother-in-law properly, andcouldn’t take adequate care of the household. She had grown up in urbanKolkata and knew little about housework, nor was she used to heavy purdah(veiling),1 such as not being allowed to go beyond the house gates. Sheclaimed there was some physical violence as well, and then she left andfiled a case back here, but it could not be enforced in her marital domicilein faraway Uttar Pradesh. A talaq (divorce) notice came in the mail,2 and aperson at the local Muslim Personal Law Board advised her family that evenif this form of notification were not quite legal, the husband could eventuallyobtain talaq in legally recognizable forms anyway if he truly wanted one. Shewas thus resigned to the divorce and was pursuing claims for maintenance –her brother-in-law went to the main Muslim Personal Law Board,3 wheresomeone advised them that they could file under Section 125,4 the provisionfor support to wives in penury, given the husband’s wealth and her ill-health and that she had to live with her siblings. The issue was proceedingthrough the courts slowly. The husband’s current offer for a lump sum settle-ment was far less than even the wedding costs, she claimed. ‘What can Muslimwomen do under these circumstances?’, she asked, ‘Do you know anythingabout remarriage for me or for other women like me?’ She asked aboutMuslim women’s organizations in India and insisted they should prioritizedealing with issues of marriage: ‘Be sure to ask them, if you can’t have anikaah [wedding] without the permission of both parties, how can you havea talaq [divorce]?’

On many levels, this case resembles the majority of cases going through theKolkata Family Court: women dealing with the long delays and disarticulatedprocesses within the legal system in claims to divorce and maintenance;women’s economic vulnerability related to their complete dependence on mar-riage as productive resource and their parents’ and siblings’ unwillingness to‘take back’ married daughters; domestic violence from husbands and in-laws; the prevarications of husbands and their attempts to conceal their econ-omic assets. But Indian Muslim women have further disadvantages: politicalskirmishes from the State and community over the religious/‘personal’ lawgoverning them constrains the forms in which they can seek legal remedies,both in forms of divorce and in amount and form of post-divorce maintenance.Not only has this extra disadvantage not gone unnoticed, but it is arguably oneof the most politically charged issues in India over the last two decades. It isimportant to mark both commonalities and differences among Indianwomen because both the structural disadvantages of gender (imbricated inclass and region) as well as the politicized disadvantages based on religiousidentity affect the individual litigant; in becoming a cultural symbol for agroup she often faces material inequity.

496 International Feminist Journal of Pol it ics -----------------------------------------------------------------------------------


Through an ethnographic examination of legal processes in Family Court,this article maps some of the circumstances which Indian Muslim women con-front in the area of Family Law. It is, thereby, also a portrait of the politicallyinterested spaces which govern their lives, indicating the osmosis between‘religious’, cultural and legal realms, rather than being a reflection on anyessentialisms about the nature of Islam. Echoing other articles in thisvolume, it provides a reminder that we can no more separate religious prac-tices fundamentally from patriarchal logic than we can separate jurisprudenceand the workings of law, indeed the State, from its constitution in multipleembedded sites of patriarchal logic, race, and imperial regimes. Optimal strat-egies for Indian Muslim women to be socioeconomically and legally empow-ered are interrogated in this context: would the grounds of cultural differenceand community support provide the best protection? Is it better to rely on theevocation of gender equity instead? Is it contradictory to merge these twooptions, or is this contradiction precisely where the inventive space of newactivism might lie? Shouldn’t both ‘community’ and ‘gender equity’ bethoroughly problematized?

BEYOND CULTURE/GENDER BINARIES

Through the particularities of the Indian socio-legal landscape, this articleforegrounds Muslim women’s engagements with Family Law in multi-ethnic, multi-religious nation-states where Islam is not the religion of themajority but where there are very large numbers of Muslims (e.g. India,China, US, UK, Canada, Germany, Russia, to name but a few prominentexamples). What should be the basis for Family Law-related rights in these set-tings? Should minority communities have the space to turn to their customarylegal precepts in seeking to preserve group identity? How far should FamilyLaw precepts conform to ‘Shari’a law’, if any Shari’a commonalities can beagreed upon among diverse Muslims? Can ‘Shari’a law’ be easily and consist-ently capacious for foregrounding principles of equity, does it have to be dis-tended beyond recognition, or should it be set aside in the same way ascriminal or corporate law is? Can ijtihad, the notion of interpretation seenas a critical pillar of Islamic jurisprudence, provide ways for challenges toemerge from within the community? The fundamental problematic here con-cerns two different registers of equity and difference: gender and minorityrights. On the one hand, equity among women and between men andwomen are often part of Constitutional guarantees and/or UN commitmentsof nation-states; on the other, contemporary nation-states position themselvesto be multicultural spaces where diverse cultural norms are to be valued. Thetransgression of either register is considered a critical form of violence. Theseattitudes are necessarily deeply imbricated in local political negotiations andhistorical trajectories, while being inflected by global discourses such asrepresentations of religiosity and interpellations of modernity.

----------------------------------------------------------------------------------------------- Sr imati Basu/Separate and Unequal 497


Some classic arguments in feminist jurisprudence have taken up these issuesas questions of representation and authority, of who speaks for women as agroup, or who speaks for a minority constituency in a particular setting, andhow they might be in conflict. Susan Moller Okin (1999) opts for foreground-ing gender in discussions of multiculturalism, focusing on questions of harmand vulnerability within groups:

When liberal arguments are made for the rights of groups, then, special care mustbe taken to look at within-group inequalities. It is especially important to con-sider inequalities between the sexes, since they are likely to be less public, andless easily discernible. Moreover, policies aiming to respond to the needs andclaims of cultural minority groups must take seriously the need for adequate rep-resentation of less powerful members of such groups.

Okin’s model refuses to see groups as homogeneous in terms of power andresources, indeed refuses to differentiate between hegemonic and marginalgroups, by foregrounding gender (in correlation with age) as the primaryaxis of vulnerability.

Catherine Mackinnon (1987), whose oeuvre has famously emphasized thecentrality of gender (more specifically, the organization of sexual regimes)as the primary axis of power, also, unsurprisingly, argues for prioritizinggender, but recognizes the political claims behind group rights and attendingto ‘particular cultural meanings, in an awareness of history and out of respectfor cultural diversity and the need for cultural survival’ (1987: 65–66). Usingthe case of Julia Martinez, who sued her tribe, the Santa Clara pueblo, in USfederal court, challenging the rule that women (but not men) who marriedoutside the tribe lost the right to pass on full tribal membership to their chil-dren, Mackinnon argues that the onus for cultural threat cannot simply beplaced on the woman to her detriment. The rule had been a response not totimeless ‘custom’ but to the privatization of communal lands by the USState and the loss of land to White men marrying Native women. Whileacknowledging that not all groups stand equally before the State and thathegemonic law is often deliberately used as a tool to vilify and dismantle min-ority groups, Mackinnon refuses to let lack of gender equity become theground for cultural sovereignty. She recommends that groups developnorms incorporating all their members as fully equitable subjects.

Mackinnon’s overdetermination of gender in this case is representative ofdominant trends in much of feminist jurisprudence that wrestles with ques-tions of equality and difference, and seeks to establish the primacy ofgender justice, given its provenance. These have been justifiably challengedas forms of ‘gender essentialism’ in the sense that they see ‘gender’ as separateand superior to other parameters, paralleling challenges in feminist theoryfrom women of color who advocate models of intersectionality rather thangender primacy (hooks 1992; Crenshaw 1996). Angela Harris (1990) character-izes Mackinnon’s (1987) analysis of the case above as a ‘refusal to movebeyond essentialism’ that does not pay attention to historical and ethnic



specificities and forces Julia Martinez to choose a singular identity (Harris1990: 594). Harris argues for a ‘jurisprudence based on multiple consciousness’that recognizes ‘wholeness of self and commonality with others’ (1990: 612)and women’s complex affiliations with men and other women.

As feminists of color have often asserted, community cannot simply beposed as an alternate source of ‘belonging’ that dissolves questions ofgender, especially given that communities often assert their cultural differenceand sense of violation/offence precisely around questions of gender/sexualityas the sacrosanct space of non-intervention. As the recent cancellation of theplay ‘Behzti’ in Birmingham, UK in response to the Sikh community’s proteststhat it offended religion by depicting sexual violence in a sacred space,5 orAnanya Bhattacharjee’s (1992) article depicting attempts by South Asian com-munities in the US to silence activists bringing domestic violence to publicnotice, show, minority communities tend to be especially wary of ‘dirtylinen’ perceptions, and to insist on mediating questions of gender bydrawing on alleged inter-community norms of justice and protection. Thisclosing-in squeezes women in these communities between compliantsilence, and serving as icons of progressive rescue for the seemingly benevo-lent ‘secular’ State hegemonically identified with the majority community, oras Razack puts it, ‘caught between the proverbial rock (a State likely to usetheir rights as a means to police [Muslim] populations) and a hard place (patri-archal and conservative discourses within their own communities)’ (2007: 6).

Ayelet Shachar (1998) poses that the conflict of community is exemplarilyreflected in Family law because it falls at the critical intersection of group andindividual rights:

unlike other situations in which self-governance powers are awarded to identitygroups, violations of individual rights in the family law arena are systematicrather than accidental, and thus legal arrangements that attempt to relieveinter-group inequalities will almost certainly have detrimental intra-groupeffects on a specific category of insider, namely women. (1998: 289)

The challenge, Shachar contends, is both to promote belonging and to safe-guard vulnerabilities, unlike Okin’s (1999) model of prioritizing gender. Sheposits a series of solutions that would allow for intersections of legal structuresmanaged through the group and the State, with levels of accountability andautonomy. Her favored solution in the realm of Family Law is to deploy a‘joint governance’ approach, giving the group authority to define group mem-bership and norms of marriage/divorce, but to assign the distributive, econ-omic functions to the State (Shachar 1998: 300). While one may quibblewith the specific domains of division in Shachar’s model,6 it providesan anti-essentialist, negotiable example of working through intersectionalidentities to mediate power relations before the law.

Sherene Razack’s (2007) framework, like Harris’s (1990) and Shachar’s(1998), foregrounds identity as intersectional, but focuses in particular on



the ways in which imperial/(neo)-colonial discourses work through evokinggender as a secular formulation. When feminist demands, including thosefrom Muslim women’s groups, characterize secularism as ‘shelter from com-munity’, the State as ‘women’s chief protector, an entity conceptualized as aneutral power, uncontaminated by conflicting loyalties to kin or community,and offering equal protection to all its citizens regardless of race and gender’(Razack 2007: 10) and the ‘normative citizen [as] one without group-basedloyalties, a figure for whom communitarian loyalties are best kept at home’(2007: 18), then they not only collude but assist in inscribing scales of moder-nity, subjectivity and agency. As she puts it:

Feminist responses helped to sustain a form of governmentality, one in which theproductive power of the imperiled Muslim woman functions to keep in lineMuslim communities at the same time that it defuses more radical feministand anti-racist critique of conservative religious forces. (2007: 6)

Razack’s arguments about the productive uses of the discourse of Muslimwomen’s rights to create broad consent about imperialist, racist governmental-ity, and women squeezed between such governmentality and conservativecommunity norms, is aptly exemplified by propositions to establish Shari’aCourts in Canada or the US or India,7 or the evocation of Shari’a law byEuropean judges . Shari’a courts are championed under the rubric of recogniz-ing a different cultural and religious specificity, and accommodating a com-munity that feels itself under attack, but conservative religious norms maybecome the script for multicultural difference as a result. In contrast, opposi-tion to these measures, on the grounds of Shari’a being irredeemably sexist,such as that from mainstream feminist groups, often reinscribes Islamophobiaand racism with little sense of any negotiating capaciousness within commu-nities or recognition of Muslim women’s subjectivities.8 As a recent report onthe UK by Women Living Under Muslim Laws (WLUML) carefully documents,the difficulties faced by British South Asian Muslim women in courts preciselyfollow these two scripts whereby women’s particularities are rendered invis-ible, caught between callous or ignorant ‘secular’ legal authorities with poornotions of Islam and intransigent patriarchal norms/laws in their communitiesor countries of origin (Warraich and Balchin 2006). The Canadian Councilof Muslim Women and the Canadian National Association for Women andthe Law recommendation to exempt family law from a proposal to haveShari’a-based arbitration tribunals to settle civil matters in Ontario (a‘secular’ opt-out critiqued by Razack), similarly expressed the impossiblebinary they faced:

While it is possible that a feminist interpretation of Sharia law or an interpret-ation of Islam that incorporates international human rights standards mayresult in arbitral awards that deal fairly with women, it is also feasible thatunder the current Arbitration Act a regressive interpretation of Sharia will beused to seriously undermine the rights of women. (Bakht 2004: 29)



It becomes evident in these examples that ‘secular’ law is not a guarantee ofequity or justice for Muslim women, nor is ‘Shari’a based’ law a refuge; bothare deeply political moments where Muslim women’s interests are not necess-arily at the center of the advocacy.9 The task of feminist analyses, Razack(2007) urges, is to complicate the meanings of patriarchy and citizenshipthat emerge in these debates, one possible mode being to ‘flood the marketwith alternative stories of culture, rather than to grant the conservative reli-gious narrative the legitimacy it won by feminists opposing it outright inthe name of secularism’ (2007: 26). That is, binaries of identity, culture andprotection must be simultaneously challenged. The analyses in this article,in this vein, are framed within women’s concrete legal encounters, startingfrom the moment in court with which I began: in centering a Muslimwoman litigant waiting on a bench all day next to other litigants, how canwe foreground her needs for equity and justice?

PUTTING EQUITY IN CONTEXT: MUSLIM WOMEN IN INDIA

Muslim women’s rights and resources within family law in India provide acomplex site for examining negotiations of community, feminism and theresponsibilities of the State; indeed, family law may be seen as the overdeter-mined site of Muslim women’s visibility while every other issue in their livesfades away (Agnes 1999; Hasan and Menon 2004). This hyper-focus on FamilyLaw occurs at the intersection of several historical and political factors.10 The‘civilizing mission’ directive of the ‘secular’/Hindu majority State, its versionof Spivak’s formulation for the colonial State as ‘white men saving brownwomen from brown men’ (and Razack’s modern/premodern division as acolor line) being something like ‘the secular State saving Muslim womenfrom Muslim men’, has been a hallmark of post-1990s case law. Alongside,the rise of Hindu fundamentalism and Hindu majoritarianism in the last twodecades is a prominent force in political rhetoric – these groups havesought reform in Muslim personal law as a punitive measure supposedly tocurtail Muslim men’s rights. In this respect, there is a significant distinction,if an elision, between the fundamentalist politics of hatred/envy and thehegemonic patronage of majoritarianism.

Mainstream Muslim (men’s) groups have vociferously objected to postcolo-nial reform efforts. Such resistance may be attributed to the religious minorityequivalent of what sociologist M. N. Srinivas (1995: 1) calls ‘Sanskritization’ inthe context of caste, viz. raising a community’s status through assertingincreasing control over its women. Family Law is a crucial site of suchshoring up of cultural capital through the control of women because economicresources, property and sexuality are simultaneously at stake (Shachar 1998).Bilgrami (1992) argues that these forms of control may also be forms of resist-ance, where public silences on the issue of reform from moderate Muslims, andthe failure to emphasize diverse Muslim identities and heterogenous readings



of Islamic texts, mark efforts at recuperating the dignity and power of Islam inthe face of colonial and postcolonial characterizations. Such empoweringmotives may be effectively seized by absolutist forces to portray a unitaryview of religion. Sylvia Vatuk (2008), on the contrary, describes a robust andmultisited Indian Muslim women’s movement gathering steam, that bothworks to expand Islamic interpretations and to reach beyond them as necessary.

Hasan and Menon (2004) adopt an economic rather than the familiarpolitico-religious approach in explaining Indian Muslim women’s situation.Concluding from an extensive survey that there are substantive differencesin access to resources and education between religious groups, with Muslimwomen being at a consistent disadvantage, they argue for the correlationbetween socioeconomic status, means of livelihood and regional politicaleconomy as a better explanatory force than the overdetermination of religion.Similarly, Flavia Agnes (1999: 36) contends that social factors such as poverty,illiteracy and rising consumerism have led to a steady and disproportionatedecline in Muslim women’s economic safeguards in law.

The whirlwind tour through the history of Muslim women and personal lawin India that follows exemplifies the hypervisibility of religion, while beingdistinctly inflected by questions of class and region. Legal ‘beginnings’ maybe seen to be the Application of Shariat Act (1937), claimed to be enacted inorder to ensure uniformity in inheritance over the patchwork of customarylaws in existence (Agnes 1999: 69), and the Dissolution of Muslim MarriageAct (1939) (DMMA), allegedly put forth ‘to alleviate the unspeakable miseryof Muslim women’, specifically to prevent women seeking divorce from con-verting out of Islam because no other grounds of divorce existed for them. TheDMMA set out numerous grounds for divorce including desertion, neglect,impotence, leprosy, cruelty (including interfering with her right to controlher property and treating her unequally in a polygynous marriage). Itclaimed to leave ‘dower rights’ untouched, although Agnes argues that thisdistinct advantage has dwindled away with token mehr11 amounts and highdowries having become customary (1999: 36).12 Seen as landmark reformthat is still the basis for divorce law for Muslims in India, Pakistan andBangladesh, the DMMA was evoked in post-Independence efforts to reformHindu marriage law as the standard for making marital dissolution remediesavailable to women (Agnes 1999).

Hindu marriage law was extensively codified in the 1950s, and despite muchresistance, relies very little on any commonality of scripture – there areminimal ‘religious’ elements in the law, which may rather be seen as a nego-tiation around resources of property and sexuality (Parashar 1992). Sub-sequent legislation includes provisions for divorce by mutual consent, andthere have been attempts to incorporate irretrievable breakdown of marriageas a standard for divorce. Men and women are formally equal in their rightto divorce and seek alimony.

In the initial postcolonial decades, while the discourse of modernity,individual rights and the egalitarian nature of the nation-state was used to



characterize changes in Hindu law, the language of non-interference andfreedom of religion pervaded the lack of attempts to make the personal lawsof other religious communities uniform or equitable. This has recentlychanged, in no small part due to claims from communities or case law:Christian marriage law, which also had starkly inequitable gendered pro-visions, has been recently reformed to stand on equal ground with marriagelaws for Hindus, Zoroastrians and the Special Marriage Act (the non-religiousprovision).13 It bears repeating that these ‘Personal laws’ (parallel civil lawsystems for adjudicating divorce, adoption, custody and property) do notrely on any form of religious law but on global trends in marital dissolutionremedies. Given women’s structural socioeconomic disadvantages and thevagaries of judicial interpretation, divorce is by no means smooth sailing,but these laws call upon a greater slate of rights than the trenchant patriarchalbias of religious texts in these traditions could generate.

While Muslim personal law has been minimally reformed in India, it hasbeen worked over much further in Bangladesh and Pakistan, for example, tostrictly set the terms on which polygynous marriages can be undertaken,and the terms for paying back mehr. Interestingly, Hindu personal law inBangladesh remains largely untouched since the nineteenth century, almostin a mirror image of non-intervention. No better proof exists for the argumentthat legal reform is not about any innate sexism of particular religious texts,but is responsive to political pressures from majority communities or unifiedstrategies from minority communities (such as Zoroastrians in India, seeAgnes 1999). Governmental indifference to reform personal law under theguise of hesitancy to interfere in minority communities effectively meansfewer chances to bring equity to that personal law. Indian Muslim women,thus, can initiate divorce on terms very different from men, and must oftenforfeit mehr if they seek divorce, which has both economic and sociallynegative consequences for them.

However, attempts at enforcing legal equity for Indian Muslim women havegiven rise to some of the most politically charged moments in postcolonialIndia. The combustible issue here has been post-divorce maintenance: underother personal laws, spouses may seek alimony for themselves and mainten-ance for their children until they marry again; further, they may all avail ofsection 125 of the Criminal Procedure Code (i.e. not personal law) which pro-vides for penurious (ex) spouses, parents or children to apply for maintenanceas a poverty control measure. In a notorious 1985 case, the Supreme Courtgranted Shah Bano maintenance under this provision, but following theensuing political furor from Muslim constituencies alleging that theSupreme Court had exercised unwarranted Quranic interpretation andgranted an ‘un-Islamic’ provision for long-term maintenance of divorcedwives, the legislature passed the ‘Muslim Women’s (Protection of Rights onDivorce) Act.’ On its face, this Act severely curtailed Muslim women’s econ-omic rights by granting them only ‘fair and reasonable provision’ during theiddat14 period in lieu of remedies under s. 125.15



As scholars such as Hasan have pointed out (Agnes 1999: 103–4), the MuslimWomen’s Act was passed at a time on the cusp of escalating communalization,and both broad-based and Muslim women’s groups stepped back from demandsfor a Uniform Civil Code as it became evident that such demands for equity wereoften used to further communalist agendas (Basu 2003). For example, the focus ofHindu fundamentalist ire frequently falls on Muslim men’s right to polygyny –in Constitutional challenges to this inequity filed by Hindu men, the SupremeCourt earlier contended that discriminatory personal laws did not violate Con-stitutional provisions of equal treatment, but more recently declared that whilereligious norms might vary, personal laws had to conform to the Constitution(Agnes 1999: 86–89). While the regulation of polygyny has been an urgentissue for Muslim women, the existence of polygyny among Hindus as well(laws forbidding bigamy notwithstanding) and the lack of economic provisionfor second wives (Agnes 1999: 87) is typically elided in the outrage.

Ironically, the Muslim Women’s Act (MWA) has worked itself through thecourts (in ways consonant with religious communalism) in judgments thathave often been favorable to Muslim women.16 ‘Fair and reasonable provision’has been interpreted to include very large lump sum amounts or maintenancepayments beyond the iddat period, e.g. Danial Latifi vs. Union of India 2001(whereas the upper limit for payments under section 125 used to be Rs.50017). In a June 2007 judgment, Iqbal Bano vs. State of UP, the SupremeCourt further clarified the perceived restrictions of the Act, contending thatMuslim women who were not yet divorced could use s. 125 to seek ‘mainten-ance’, in addition to divorced women seeking ‘fair and reasonable provision’under the Act. Even before that, though, wealthier women often sought torecover mehr, iddat as well as ‘fair and reasonable provision’ in tens ofthousands of rupees through the MWA, while poorer women sought smallamounts under s. 125, as Vatuk’s (2007) analysis of Hydrabad court recordsand her previous discussion of case law (2001) shows.

Meanwhile, intra-community promises to reform have traversed little substan-tive ground. The All India Muslim Personal Law Board (AIMPLB) had promised a‘model nikahnama’ for a while, and announced one in 2005. It was met withstrong resistance from Muslim women’s groups and broader women’s organiz-ations, on the grounds of having ultimate authority on domestic disputes restwith religious figures, paying little attention to issues like triple talaq and poly-gyny foregrounded byMuslim women, and prescribing ‘obedience’ for women inmarriage (Vatuk 2008).18 Some Muslim women’s organizations have profferedtheir own versions in its place, but lacking the reach and credibility of theAIMPLB, these have been difficult to establish in popular use.

IN THE COURT: (MIS)APPLICATIONS AND DISCIPLINE

How do these legal and legislative flashpoints translate themselves in everydaylegal circumstances? A large number of women regularly approach the courts



on maintenance issues: as Flavia Agnes astutely comments, ‘the claim ofreligious leaders that Muslim women are opposed to accepting maintenancefrom their ex-husbands has not been substantiated. The Muslim womenwere able to separate their religiosity from their temporal needs of economicsurvival’ (1999: 104). In the trenches of the Family Courts where the Dissol-ution of Muslim Marriage Act, the Muslim Women’s Act and s. 125 aredaily ruled upon, there is, further, much confusion as to the state ofSupreme Court precedents and updated legal remedies available to Muslimwomen, with lower court judgments often being far from consistent withcurrent appellate court decisions, and inconsistent between different judgesin a given court setting as well.19

The vignettes that follow are culled from my observation of the KolkataFamily Courts in 2001 and 2004–5,20 and demonstrate some of the discourseswhich govern Muslim women’s divorces. Despite the dramatic appellate judg-ments described above, Muslim women in court routinely confront a smalleruniverse of options when it comes to their right to divorce, their conjugalrights, and the conditions under which they receive maintenance, comparedto women from other communities. However, the case often comes down towrangling over income and support, custody as a form of currency balancingmaintenance, and staving off divorce by staying silent about violence: here,women’s struggles for economic sustenance, sexual self-determination andencounters with the bureaucratic State transcend religious identity.

Perhaps the most overdetermined signifier of religious difference forMuslims in Hindu eyes is polygyny, often narrated from a Hindu male’s per-spective as privileged access to multiple women and greater reproductivesuccess (and therefore a larger share of the population). The following caseof inter-religious marriage provided an opportunity to understand women’sfrustration with the standard in both economic terms as well as through cul-tural hegemonies. A Christian woman and a Muslim man, both in theirfifties, married by Muslim rites, and also divorced by Muslim rites, were incourt because they still required a legal divorce in court given their differentreligions, and the wife had also filed for maintenance. She asked for Rs500021 citing his successful business but was awarded less than a fifth ofthat, Rs 900 (though she had monthly medical bills for half that amount);the husband wanted to pay only Rs 500. When she said in frustration to thejudge ‘he doesn’t seem too poor to maintain a second wife’, the judge saidsternly, ‘that is his right as a Muslim man; I cannot impose Hindu law orany other system of law on him.’ The legal standard for members of twodifferent religious communities (or castes, or those opting for no religion inmarriage) to get married is to opt out of ‘Personal Laws’ and to avail of theSpecial Marriage Act (1954).22 The parties to this marriage had clearly notdone so, and thus demonstrated a not infrequent problem in the courts, ofmarriages that were not strictly valid by legal standards. Nonetheless, thecourts dealt with these cases because questions of alimony and child supportwere still deemed to be valid, and in this case Muslim law was applied



because a marriage had been performed under Muslim rites. The husband’sunderestimation of income and the wife’s claim for a larger sum than shewas ultimately given followed the usual script in this court, regardless ofreligion.

When the wife expressed her economic frustration by referring to the normof monogamy in every other system of personal law, implying that hispolygyny reduces the amount he has to share with her and his children, shewas rebuked for raising an invalid point under Muslim law. In the matter ofpolygyny, she does indeed have to share conjugal resources in ways thatwives under other personal laws do not; on the other hand, Hindu men routi-nely cite their financial obligations to their extended families in a bid to reducethe maintenance, and these pleas are often taken into consideration, so poly-gyny per se is not a site of economic inequity. However, she lacks the power toobject conjugally to polygyny as Muslim women in other South Asiancountries, e.g. Bangladesh, or women under other personal laws in India, areable to,23 and hence faces a social inequity, underlined in the judge’s (some-what punitive) implication that she is unable to help anyone if their personallaw cannot help them.

There is a common cultural notion that Muslim divorce can be performed inone fell swoop through triple talaq, by a husband pronouncing ‘I divorce you’three times (even from a remote site through e-mail or instant messaging),despite the legal standard for a time period in between the three pronounce-ments, and a mandated mediation session with both parties, religious auth-orities and mediating family members from both sides. The practicecontinues despite the legal ruling, as discussed earlier, and when brought tocourt, husbands often claim, as in the following case, that the divorce is along-established fact and that he has proof she knows about it or has agreedto it.24 In a hearing for interim maintenance under the Muslim Women’sAct/ s. 125, the husband, a neurologist, owned a successful clinic and twooffices, making Rs 20–30,000 a month by his wife’s estimation (he said heearned Rs 5000, or about $120). The wife sought Rs 1000 for herself, and Rs1500 for each of their three children, but he wanted to pay a total of Rs 800in all. They had been married for six years, but he now claimed that theyhad a forced marriage and that the eldest child was hers before the marriage,though she was born during the time the wife said they were still married. Birthcertificates and DNA testing were ordered to settle the paternity issue.She claimed they were not divorced, but he claimed that he had her signatureon a piece of paper granting divorce.

The judge deemed that the paper was not a valid decree of divorce under theDissolution of Muslim Marriage Act (DMMA), for which specific grounds ofdivorce under the Act would need to be cited, and a legal decision rendered.She told him he was not divorced by law, but could initiate a legal divorceif he wanted (and would have to begin paying maintenance even before thedivorce went through). In talaq divorces, Muslim women cannot, of course,agree to grant divorce, and so the alleged signature granting the husband



divorce in the current case has no significance even had he obtained it withoutcoercion or fraud. Since she was not seeking divorce, there was no question ofher having asked for a khula25 divorce or a divorce under DMMA and given upher financial claims either. As importantly, women’s right to be financiallysupported while married, to claim ‘fair and reasonable’ provision afterdivorce (at least for the three months of the iddat period) and to claim themehr (dower) back all rest on the talaq not having been settled. In othersystems of personal law, the maintenance claim stays open whether or notdivorce has already been filed (i.e. during and after marriage with no cut-off), and there is no three-month time window, making Muslim womenuniquely vulnerable to specters of timing problems, such as whether a custom-ary divorce had been long-accepted with no financial settlement.

In this case, the judge seemed well aware that granting the legality of a long-ago customary divorce (even if there were such proof) would drasticallydiminish maintenance options, and thus she strategically re-set the time onthe maintenance claim and made arrangements for pre-divorce maintenancepayments as well. The situation illustrates both the frequent legal maneuveringundertaken by judges in the Family Court in order to make sure women getreasonable maintenance payments, as well as the particular time-relatedeconomic vulnerabilities of Muslim women going through divorce, includingthe fact that they may eventually get only a three-month settlement ratherthan a longer-term claim. The wife in this case lived with her brother andfelt that to be an uncomfortable economic situation, belying the assertion(frequently evoked during the Shah Bano case on post-divorce maintenance)that divorced Muslim women were cheerfully absorbed back into their natalfamilies.

That staying married (whether separated or not) provided greater economicbenefits than being divorced was a recurrent theme in judges’ recommen-dations, not just for support as in the previous case, but often as a discipliningwarning. In an interim maintenance case under s. 125 for a young couplewhose appearance indicated that they might be quite poor, the couple wasstill trying to work out if they could resume living together. The wife’s con-dition was that she would stay with him if he lived with her at her nani’s(maternal grandmother’s) house. Her mother kept talking over her, sayingthey would make all the arrangements, and the couple would have a separateliving space. The judge said to the mother: ‘this [unclear what, likely extendedfamily conflicts for the daughter-in-law] was a problem for Hindus, now I seeyou do this too!’ To the wife, the judge said, ‘he has not given you a divorce –this means he really wants to stay with you because it won’t even take him twominutes to divorce you under Shariat laws’. He agreed that he wanted her back.When the judge asked her, ‘why should he leave his own people and stay inyour nani’s house?’, she almost screamed that her in-laws were abusive andshe did not want to go back there, but the judge seemed dubious, sayingexasperatedly ‘okay, if you want to stay at your nani’s house, just keepliving there forever’ (implying that she could do that through divorce).



An interim maintenance order for Rs 600 was granted – he wanted to payRs 200, but the judge insisted that she was bound to make sure she providedfor the woman’s upkeep during the case.

The judge’s comments reflect a notable ‘Othering’ of Muslim law: in refer-ring to Muslim households as being outside the prevalent violence/conflictof extended households towards daughters-in-law, then threatening thewoman with the notion of ‘Shariat law’ (Muslims in India are of coursesubject to specific codified laws rather than any general application ofShariat), both misplaced admiration and threat set up a zone of difference.As in the previous case, here, too, the issue is that by filing for divorce,under grounds of cruelty for example,26 a woman opens up a time-limitedwindow of maintenance; continuing to stay married (even if separated),with or without violence, is the most reliable economic option.27 The judgeimplies, none too subtly, the drastic consequences of aberrant gendered beha-vior (such as residential demands) in launching the dread of divorce; giventhat husbands can easily initiate divorce and then move on, it is her task toavoid that possibility.

Allegations of desertion and cruelty often revolve even more explicitlyaround questions of violence, as in the following case where culpability(and hence compensation) revolve around justified vs. arbitrary abandonmentof the marital home. In this maintenance case under s. 125, the business of thecourt revolved around questions of putative violence. The judge went througha protracted period of questioning the husband about why his wife left, if heattempted to get her back, and when he saw her last, explaining that theamount of maintenance would depend on his attempts to get her back andher response to his attempts. The husband contended that she made a seriesof excuses about family illnesses and other crises in her natal home to delayher return. Even though he was the witness, and she was supposed to besilent, the wife burst out that he beat and cursed her; the judge entered intothe record ‘the petitioner refused to go saying she was assaulted by me(writing in the defendant’s voice).’ His witnesses (neighbors) were lined upto support his claim that he was not violent. This is one of the mostcommon kinds of cases in the Family Court, where violence emerges as theaxis along which maintenance and residence are to be decided, and personallaw does not seem to be directly relevant. But again, women’s allegations ofviolence are often read as provocations for filing divorce claims againstthem, and conditions for divorce and maintenance being unequal among per-sonal laws, it is financially most advisable to stay married (whether in the sameresidence or not).

In theory, dower amounts are to be paid partly right after the marriage(‘prompt’) and partly at a later time (‘deferred’), but certainly on the occasionof death or divorce, the notion of mehr often thought of as ‘a nest-egg withwhich she can start a new life’ (Vatuk 2008: 504). Mehr is praised by legalscholars such as Agnes (1999) as a strength of Muslim law because it providesa property fund, a substantial protection against destitution through marriage.



In practice, as Agnes and Vatuk point out, and as I have often observed as well,the insurance of dower has been whittled away: mehr amounts may often beset too low to make any difference, and brides are often ‘persuaded’ rightafter the wedding to ‘forgive’ the mehr permanently. In the following case,mehr recovery was the only recourse for a woman who was already divorced.I watched court ‘counselors’/helpers assist a destitute-looking woman torecover her Rs 2500 mehr. From what we could gather based on heraccount, she had been married twice to the same man, having given him adivorce the first time at his request (possibly a customary divorce by khulaand not under the Dissolution of Muslim Marriages Act). But this time hewas initiating divorce, and also had another wife already. It was unclear tothe counselors whether she had already forfeited her claim to mehr whileseeking divorce earlier, or whether she forgave him the mehr debt duringtheir marriage, i.e. whether a valid recovery was even possible. However,while recovering mehr might prove difficult, the lump sum would be herbest option in the short term given her penury. She did not appear to havefiled a claim for maintenance, but if the husband’s income was low, the main-tenance award would be likely to be low as well, so mehr could only help sup-plement it. The situation illustrated the theoretical advantages of mehrperfectly, while also indicating the difficulties of realizing dower claims.

By 2004, lots of Muslim women were in court seeking (pre- and post-divorce)maintenance under s. 125, the minimum amount having gone from Rs 500 toRs 1500 by law, and the differential standard with women of other communitieshaving effectively gone away. One judge of the Kolkata Family Court claimed hehad even given awards of Rs 25,000 as ‘fair and reasonable provision’, and wasconsistently granting maintenance at one-third to one-quarter of income,although the other judge did not follow that norm. The decisions providedwelcome relief to women (though many of these amounts were modified inappellate settings), even if they simultaneously furthered hegemonic Hinducharacterizations of progressive legal equity as a retaliatory process.

However, the flip side of maintenance awards was the difficulty of executingthem, and many women regularly returned to complain of non-payment andask for orders to be enforced. In one case, a man had accumulated Rs 31,000 inunpaid maintenance – he had not paid the decreed amount for over a year,even though the amounts were only Rs 700/month for the wife and Rs 400each for the daughter and son. The wife was applying for a ‘distress warrant’to execute the order, but he kept saying brashly ‘just send me to jail’, refusingto pay anything. Though he paid minimally compared to his income, he dis-puted maintenance to his children, who he claimed were teenagers andeither married or working. While case law suggests Muslim women’s post-divorce maintenance issues are now satisfactorily resolved, there wereprofuse examples of such recalcitrance, indicating that likemehr, legal advan-tages of getting maintenance awards did not necessarily translate into practice.

In looking over the cases, I am left with a prevailing sense of the capricious-ness and inconsistency of judicial decisions, and the abiding patriarchal logic



embedded in various forms of Family Law, despite an apparent list of reforms,echoing the findings documented by scholars of feminist jurisprudence overdecades. Recurrent themes in these cases are husbands’ reluctance to paymaintenance no matter their financial status, invocations of domestic violencethat get minimized at the cost of economic support within marriage, wives’problems with in-laws in the affinal home, husbands’ reluctance to alignwith their in-laws residentially or financially, and the disproportionate disci-plining of women’s behavior, movement and speech in court. These are pro-blems Muslim women share with women of all religions in systems ofpatrilineal residence and inheritance in their encounters with law, as I havedocumented in my extended ethnography.

However, two factors create further disadvantage for Muslim women evenin these situations. First, following Hasan and Menon’s argument (2004) thatMuslim women are disproportionately represented among the poor in India,these litigants face some of the most dire situations in court and are likelyto be more affected by the problems enumerated above. However, thisbroader socioeconomic problem, which Hasan and Menon relate to occu-pational structure and education, cannot be solved in the realm of theFamily Court. Second, Muslim women’s inability to divorce on the sameterms as men, to avail of mutual consent divorce (the simplest and quickestmethod being used with ever increasing popularity in the courts), and toreceive maintenance upon divorce no matter who files for the divorce orwhen the divorce has gone through, routinely puts them in more uncertainsituations than other women face. Despite a few comments that betrayed hege-monic Hinduism as the default progressive mode, judges did not seem bla-tantly communally biased28 and were often quite helpful with women’smaintenance claims, though limited by available legal remedies.

CONCLUSION: ALTERNATIVE DESIGNS

Can these problems be accommodated through reform of Muslim law withconsensus among Indian Muslim communities? While broader socioeconomicinequities require remedies in other realms, can personal law improve some ofthe options, if ‘secular’ law is seen as too alien? In Muslim majority countries,attempts to improve Muslim women’s situation regarding family law haveoften relied on expansive interpretations of Shari’a law, highlightingwomen’s ability to contract a slate of rights under Islam. Taslima Monsoor(2001) has mapped this (as an ideal scenario) in the case of Bangladesh. Themost dramatic recent example is Morocco’s 2004/5 Mudawana reform,which equalized marriage age at 18, created rights to the conjugal homeand division of marital property, and eliminated the provision of ‘obedience’as a wife’s duty. But no matter how much elasticity Shari’a law is capable ofyielding, either by relying on the strength of individualizing contracts or byturning to ijtihad, religious law ultimately tends to reflect the gendered



hegemonies of its founding moments; responsiveness to contemporaryproblems is often complicated and protracted. This is not to ignore the gen-dered hegemonies in the founding moments of liberal equality doctrines,but they have broadly proved more malleable over time, in part becausescriptural inequalities have not had to be justified or reconciled. In India, inparticular, no ‘Personal Laws’ other than Muslim Personal Law are substan-tially based on religious precepts; in the US or UK or Canada, people are notsubject to religious laws for divorce, though they may try to incorporatetheir customary norms in divorce negotiations. The additional burden ofrationalizing religious logic thus falls on Muslim women.

The Indian political scenario has posed particular challenges for the binaryof gender primacy (or intersectionality) vs. multiculturalism – as Raji SunderRajan (2000) describes it, ‘Feminist activists may oppose state and/or commu-nity straightforwardly when there is a clear polarization of positions betweenwomen’s interests (gender justice) and religious/state patriarchies, but in Indiawomen’s groups also have to respond to and negotiate minority claims for rec-ognition’ (2000: 58). In the last two decades, Indian women’s groups have hadto splinter, with threats to minority religious groups in the face of rising Hindufundamentalism (Chhachi 1991: 169). Muslim women have often chosen tosupport claims for a distinct cultural identity and have framed theirdemands for reform within their personal laws, while Hindu ‘secularist’ femin-ists have found fundamentalists supporting their claims with very differentpolitical agendas. In moving beyond that fracture, while being sensitive tothe communalization of politics if a uniform civil code were to be pushedthrough, and to Muslim women’s right to avail of religiously sanctionedmarital dissolution remedies, feminists and women’s groups in India havebegun to advocate for equity and consistency between all religious laws, posit-ing various innovative models and advantages. Vatuk (2008) documents anumber of groups that constitute a ‘nascent “Islamic feminist” movement inIndia’ which strives to mediate cases, advocate for legal change and consistentprocess, and develop its own hearings and standards, expanding religiousprovisions liberally and even stepping beyond them as they see fit. Therehave also been propositions to reform each set of personal laws, or suggestionssuch as that by Kishwar (1995) that personal laws be reformed along with anoptional civil code. Such an optional non-religious remedy would be availableto those who needed their provisions (somewhat similar to Shachar’s (1998)proposed model), while those who preferred alternate religious solutionswould have the choice to do so anyway, thus maximizing women’s optionsto be both secular and religious subjects on terms advantageous to them.Moreover, the availability of strong religion-independent options might spurrapid reform among community and religious organizations, so as to be ableto offer women roughly parallel terms in divorce if they sought to encouragetheir participation in religious forums – the onus would be on them to offerfavorable, equitable alternatives. In more abstract formulations, feminist scho-lars have also suggested that creating alternatives to the overdetermination of



religion-based communities would be one way out of the intense polarizationaround questions of the secular. In this vein, Kumkum Sangari (1995) advo-cates challenging ‘multiple patriarchies’, because ‘religion is not the singularaxis of cultural diversity’ (1995: 3302). These heterogeneous scenarios,though as yet in the realm of negotiation and discussion, can nonethelessserve to complicate the binaries of religious orthodoxy vs. gender equity,and to signal complex affiliations in feminist politics.

As Angela Harris (1990) points out in her critique of Mackinnon (1987),identity is multiply embedded and negotiated; neither gender nor religionare determinative. Muslim women inhabit similar discursive gendered spacesin a multireligious State as women associated with other religions: they donot necessarily foreground their religious identity in inscribing themselvesas legal subjects, seeking rather the same self-determination, or freedomfrom violence, or resources for sustenance as other women in the courts. Anation-state that invokes equality among citizens must be attentive to thesematerialities (and not just religion as the axis of difference) in paying attentionto minority rights. While stepping outside seeming religious proscriptions is noguarantee of better justice, neither does the application of religious standardslack bias or prejudice (whether they ever can overcome bias or not is ajuridico-theological debate of little comfort for ethnographers of law). Non-religious standards in Family law, or sets of religious laws with the assuranceof the exact benefits provided by the non-religious option, provide a means ofadjudicating socioeconomic issues – they advocate not the supremacy of‘universalist’/essentialist values such as gender as a primary site of oppression,but rather equity within a given nation-state accounting for demographicparticularities, and refuse to choose between cultural relativism and genderjustice.

Srimati BasuGender & Women’s Studies

University of KentuckyBreckinridge Hall

LexingtonKY 40506-0056

USAE-mail: [email protected]

Notes

1 A number of Hindu and Muslim communities practice veiling in varying degrees;

the level referred to here is unclear.

2 This conversation took place at a time when the practice of the husband pronoun-

cing triple talaq at a single setting had been legally declared invalid (Basu 2003).

The legal expectation was that talaq had to be verbally pronounced in the presence



of the person at the time of intended separation and in more than one episode.

While appellate courts in the 1990s gave a variety of judgments on the need to

‘prove’ talaq and not just state it in pleadings, the 2002 Supreme Court case

Shamim Ara vs. State of UP and Another (2002 7 SCC 518) set new ground with

the verdict that talaq could only be given for a ‘reasonable cause’ and if preceded

by a ‘pre-divorce mediation’ including both families. However, triple talaqs

continue unabated (Vatuk 2008: 503).

3 As Vatuk defines it, ‘this self-appointed body was established in 1973 “to protect

the Muslim Personal law (MPL) in India”. Its 201 members include many of the

country’s leading clerics . . . It has no real authority to set legal policy for the

Muslim community but is very vocal and exercises a great deal of public authority

on matters related to MPL’ (2008. 493). In the case at hand, for example, the legal

recommendations are purely advisory but are deemed to carry authoritative

weight for family members looking for direction.

4 The advice from the board to follow s. 125 anti-penury provisions is ironical if one

remembers that the Board historically opposed awards under s. 125 for Muslim

women as described later, and advocated they rely on family or waqf charity.

5 Gurpreet Kaur Bhatti’s play ‘Behzti’ faced violent protests from certain Sikhs who

objected to elements of the plot such as sexual abuse and murder that takes place

in a gurdwara (Sikh temple), and a priest being involved in rape. The subsequent

intense debate was framed in terms of ‘violating a sacred space’ (fictionally!)

versus being able to explore issues of sexual violence and shame that may

happen within the community (BBC News 2004; Choudhury 2004).

6 Mitnick (2003: 1659) critiques not just the operational details of this model but

also worries about whether the most vulnerable of group members feel most

obliged to comply to group norms and may have difficulty opting out.

7 In 2005, the All India Muslim Personal Law Board recommended at its national

conference that Muslims work to establish a large network of dar-ul-qaza or

Shari’a courts across the country [some exist already], to preserve the ‘separate

religious identity of the Muslims’ (Communalism Watch 2005). The Supreme

Court is now in the process of hearing a Public Interest Litigation case filed by

Vishwa Lochan Madan, asking for the dissolution of all Islamic and Shari’a-

based courts on the grounds that existent marriage and criminal law were being

violated in these venues, and the judiciary undermined. The government’s position

is that the existent courts are advisory, allowable under freedom of religion, and do

not constitute legal interference (The Telegraph Online 2007; Express India 2007).

8 See for example http://fjordman.blogspot.com/2005/02/islamic-law-used-by-

secular-swedish.html.

9 I have focused here on legal rights in formal courts before the State; as scholars

such as Solanki (2007) have pointed out, legal adjudication through community

organizations, non-governmental groups and local religious bodies often set inno-

vative trajectories for interpreting formal legal decisions. The interaction between

all these realms including the State finally sets the terms on which ‘minority rights’

are deployed. The formal legal level, however, sets the criteria of last instance.



10 Rajeswari Sunder Rajan (2000) usefully maps some groups who occupy signifi-

cant positions in these conflicts, organizing them with respect to questions of

whether or not systems of personal law should be abandoned in favor of a

Uniform Civil Code: (1) Groups that favor some form of a Uniform Civil code –

whether ‘Constitutional Secularists’ who seek legal uniformity for greater

national unity, or Hindu nationalists who assert religious hegemony through

imposing ‘uniform’ laws; (2) Groups that oppose the Uniform Civil Code –

either on the grounds of ‘Religious Patriarchy’ (resistance to proposed changes

in laws benefitting women), or because of minority communities’ perceived

threats to religious identities and to a Uniform Civil Code essentially Hindu in

nature, or from ‘communitarians’ who oppose ‘coercive state secularism’; (3)

Other constituencies such as women’s groups, who would place questions in a

broader palate of unequal rights (2000: 57). Notably, the alignments make for

incongruous political alliances.

11 Mehr refers to ‘dower’ or bridewealth in Muslim marriages, owed to the bride from

her husband. It can be ‘prompt’ (paid right after the wedding) or ‘deferred’ (paid

later, often at divorce).

12 Dower is paid by the groom’s family to the bride, dowry by the bride’s family often

to her in-laws or husband.

13 Agnes (1999) and Parashar (1992) provide comprehensive trajectories of the

reform of Indian family law.

14 In Muslim legal systems, Iddat is a waiting period for women who are newly

divorced or widowed, before they can marry again. It is usually three months,

except for pregnant women, for whom it is the end of the pregnancy.

15 Engineer (1987) provides a comprehensive portrait of the politics around Shah

Bano; Pathak and Rajan (1989) explore the discursive terrain and Shah Bano’s

erased subjectivity.

16 Basu (2003) and Vatuk (2001) provide accounts of the legal terrain under this Act.

17 This upper limit has now been removed as well, as discussed later in the article.

18 See also http://cities.expressindia.com/fullstory.php?newsid¼128146.

19 Besides my own observations, Solanki (2007) and Vatuk (2007) have also reported

this in their respective Indian Family Court settings.

20 My fieldwork included observation of legal aid venues as well as courtrooms and

court-related counseling; I have focused on courts in this piece. I have also empha-

sized issues of maintenance and grounds of divorce in these cases, setting aside

other issues such as custody and jurisdiction for this paper. I observed multiple ses-

sions of several of these cases. During each period of fieldwork, there were two

judges (the individuals changed), both with Hindu names (one possible if proble-

matic way of surmising religious affiliation), one male and one female.

21 US$1 equaled about Rs 47 in 2001.

22 If one party were to convert from their religion, however, they could marry under

personal law.

23 Polygyny under which wives are treated unequally may be cited as a cause of

divorce under the Dissolution of Muslim Marriage Act, but there are no provisions

in India for existing wives to object to a husband’s polygyny.



24 Solanki (2007) confirms this common ploy: husbands claim the divorce has gone

through to avoid maintenance as well as the remedy of ‘restitution of conjugal

rights’, and judges often try to mediate through seeking strict proof of divorce,

leading husbands to various innovative methods for establishing public divorce

announcements.

25 Muslim women can privately and irrevocably dissolve their marriages through

Khula. It allows women to not depend on their marriage contracts in asking for

divorce for a variety of reasons, and to retain gifts they brought to the marriage,

but they are supposed to recompense their husbands, and in effect often forfeit

their mehr/dower in exchange.

26 Criminal charges under s. 498 are a gender-neutral way of bringing domestic vio-

lence by the extended family to legal attention, in addition to divorce-related

pleadings in (civil) Family Court.

27 In related research, I have been mapping the ways in which assertions of domestic

violence by women of all communities is often framed/counteracted by judges as

a choice between economic sustenance and the option to allege violence on crim-

inal grounds, reconciliation within marriage being suggested as the optimal

alternative.

28 Unlike the cases documented in Basu (2003), where communalist agendas appear

blatantly in judgments, or in Agnes’s (1999) contention that the Muslim Women’s

Act ‘has been used by court officials to express a general anti-Muslim bias’ against

polygyny and easy divorce (1999: 105).

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Separate and Unequal: Muslim Women and Un-Uniform Family Law in India

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